Mimesis Law
24 September 2017

Just So We Are Clear, Race is Not a Reason to Strike a Juror

Mar. 25, 2016 (Mimesis Law) — On March 11, 2016 in Wharton County, Texas, in an interesting twist, prosecutors actually acknowledged a trial strategy had been discussed which would “strike all blacks” from the jury. According to prosecutors, their boss, elected District Attorney Ross Kurtz, spoke on several occasions to his subordinates about keeping blacks off local juries.

While they denied utilizing that strategy in this particular case, although they just so happened to strike the only three black jurors on the panel, they did go on record acknowledging general discussions within their office about excluding black jurors. They even expressed feeling uneasy about those discussions, noting Kurtz would often select juries and utilize this strategy: eliminate black jurors to increase the likelihood of securing criminal convictions.

I confided certain concerns and expressed my stress over the Ware trial to a person who was, and continues to be, a very dear friend. Among those concerns expressed was my stress over being instructed by the District Attorney to strike black jurors.

To be clear about the word “instructed,” the District Attorney never gave me a direct order or a chain-of-command directive to strike jurors based on race.

It was not an “I’m-your-boss” instruction. I used the word “instructed” inartfully during a conversation with my friend that I expected would remain private. Because of the incendiary nature of this extraneous information, I must explain to the Court the external pressures I was feeling prior to this trial and affirm to the Court that these external pressures bore no fruit and had no impact on this trial. I was not “instructed” to strike black jurors so much as I was advised or encouraged to do so as a matter of trial strategy.

The prosecutors further explained that if their boss had shown up to select the jury in this case, they might have had to disclose his improper methods of excluding jurors to the defense attorney. (Transcript, p. 21.) The court inquired as to whether or not their boss suggested excluding black jurors routinely. Their shocking admission:

THE COURT: Well, have you ever heard Ross say that if you don’t strike the blacks, it’s your case to lose?

LaBRUYERE: Something to that effect, yes. (p. 22)

Local Texas lawyer and fellow Fault Lines contributor, Murray Newman, addressed this very case and the prosecutor’s soft sell of what his boss had actually said. Though the prosecutors offered their rationales to the court while minimizing and flat out denying using race as a factor in juror elimination, the twist is they admitted racial exclusion was actually discussed as a strategy.

It is rare, virtually unheard of, for a prosecutor to openly admit this practice exists, though numerous studies have shown that prosecutors use their peremptory challenges to strike black potential jurors at a much higher rate than whites. Though Kurtz denies this practice, his two subordinates have acknowledged his comments, practice, and pressure to conform.

Since 1986, the law of the land has been that prosecutors cannot strike or eliminate a potential juror based on the juror’s race, as held in Batson v. Kentucky. This constitutional issue is based on the Equal Protection Clause and provides that the defendant is guaranteed that the state will not exclude members of his race from the jury. The Supreme Court stated, “selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”

Despite this, prosecutors continue to exclude jurors from serving on their juries because of their race. Then-Supreme Court Justice Byron White explained the prosecutors’ use of peremptory challenges to exclude people based solely on race was a widespread practice; though the years have passed, this improper practice remains common and widespread as prosecutors seek to win at all costs.

During jury selection, prosecutors are allowed “peremptory challenges,” also referred to as strikes, which allow them to simply remove potential jurors from the jury panel without any requirement to provide a particular reason for the removal. Where the prosecutor removes a potential juror, the defense may assert a challenge against that removal, and the court will determine whether or not the prosecutor based its decision on race (or gender, as the Supreme Court has also ruled). Once the defendant challenges the prosecutor’s strike, it is incumbent on the prosecutor to state a race-neutral (or gender-neutral) reason or explanation for its strike.

In many cases, prosecutors offer what can only be construed as weak attempts to cover their true reason for excluding minority jurors. Facing a “Batson challenge” in a capital murder case, former Harris County prosecutor Kelly Siegler once offered her race-neutral reason as the juror attended Lakewood Church, and all members of that church are “screwballs and nuts.” In many cases, prosecutors revert to something like, “I didn’t like the way she looked” or “failure to maintain eye contact.” Given these attempts to justify the juror’s exclusion, it is rare, no matter the explanation, that a judge will find the prosecutor at fault.

This issue is again pending in the United States Supreme Court in Foster v. Humphrey. Briefs have been filed and oral argument was heard in November. The prosecutor, faced with a challenge to her peremptory strikes, asserted race-neutral reasons such as age, failure to maintain eye contact, and other seemingly benign reasons. However, years later, attorneys for Foster obtained access to the prosecutor’s notes which included a “B” highlighted next to each black juror, as well as a list of the black jurors with a notation, “Definite NOs.” Even with this new evidence, Georgia courts said the prosecutors offered race-neutral reasons that should not be second guessed.

Clearly, this issue is nothing new and is not going away any time soon. The question remains whether the malignant prosecutorial policy of striking blacks based on race can be circumvented with benign generic excuses. Especially when prosecutors admit that’s their policy.

2 Comments on this post.

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  • jdgalt
    26 March 2016 at 1:05 am - Reply

    Just as in other areas of discrimination, this discrimination law is impossible to enforce so long as prosecutors can dismiss people from a jury without stating a reason.

    So let’s eliminate all peremptory challenges.

  • JoAnne Musick
    26 March 2016 at 1:25 am - Reply

    I don’t think eliminating peremptory challenges is the answer. But a stronger judiciary could certainly make a difference. Excuses like “I didn’t like the way he was sitting” are just so weak. Why does the judge accept this? Especially troubling is the judge accepting this type of excuse when the prosecutor had every opportunity to flesh out why the juror might have been sitting that way.
    When parties have the opportunity to talk with the jurors and ask them questions, A meaningful dialogue gives a basis. To say it’s about “the way someone looks” is nothing.
    Let’s just hold the prosecutor to meaningful and reasonable actions.